Shahid Sultan Durani etc Vs Khalid Mehmood

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Civil Revision No.717-P/2019

Shahid Sultan Durrani and others........Petitioners. Versus Khalid Mehmood............................Respondent.

Present:

Mr. Muhammad Suleman, Advocate, for the petitioners.

Mr. Shahin Shah, Advocate, for the respondent.

Date of hearing:

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through the instant revision petition filed under section 115 of The Civil Procedure Code, 1908, petitioners have challenged the judgment and decree of learned Additional District Judge, Shabqadar dated 12.02.2019, whereby the appeal filed by the predecessor-in- interest of the present petitioners, namely Mst.

Surayya Begum, was dismissed and thereby maintained the judgment and decree of learned Civil Judge-I, Shabqadar dated 23.12.2010 who vide the same had dismissed Suit No.72/1 of 2008 (filed by the predecessor-in-interest of the present

petitioners) and decreed Suit No.56/1 of 2009 (filed by respondent/defendant No.1).

2.Precisely, the facts leading to the filing of the instant revision petition are that the predecessor-in- interest of the present petitioners then plaintiff, namely Mst. Surayya Begum, brought Suit No.72/1 on 20.06.2008 for declaration to the effect that she is owner of the house, fully described in the heading of the plaint, on the basis of her dower deed dated 18.02.1973 and that the alleged agreement to sell dated 09.01.2006 allegedly executed by defendant No.2, namely Sultan Muhammad Khan Durrani (husband of the plaintiff) in favour of respondent/ defendant No.1, namely Khalid Mehmood, is fake, fictitious and thus ineffective upon her right. She had also prayed for the issuance of permanent injunction to restrain the respondent/defendants from showing themselves as owner of the suit house as well as for the cancellation of the said deed dated 09.01.2006.

In the last part of her plaint, she has also prayed for payment of outstanding rent of Rs. 3,000/- for the preceding three months, i.e., @ of Rs. 1,000/- per month. Defendants were summoned, out of them, respondent/defendant No.1, namely Khalid Mehmood, appeared and submitted his written

statement, whereas defendant No.2, namely Sultan Muhammad Khan Durrani, submitted his cognovit.

3.After filing of the written statement on 02.03.2009, respondent/defendant No.1 thereafter also filed Suit No.56/1 on 09.06.2009 for declaration to the effect that he is owner of the suit house on the strength of sale deed dated 09.01.2006 and also challenged that the dower deed dated 18.02.1973 executed by respondent/defendant No.1 (Sultan Muhammad Khan Durrani) in favour of her wife (Mst.

Surayya Begum), is fake, fictitious and thus ineffective upon his right. He also prayed for specific performance of the said agreement to sell dated 09.01.2006 and in alternative, also prayed for the recovery of Rs. 1, 013,500/- with interest and an amount of Rs. 500, 000/- as cost of improvement.

Both these suits were consolidated by the learned trial court and thereafter, as many as thirteen (13) consolidated issues were framed and since Suit No.72/1, filed by Mst. Surayya Begum (the predecessor-in-interest of the present petitioners) was earlier in time, therefore, evidence was recorded in the said suit. Both the parties led their respective evidence and ultimately, the learned trial Court vide one of the impugned judgment and decree dated 23.12.2010, dismissed Suit No.72/1

filed by the predecessor-in-interest of the present petitioners and decreed Suit No.56/1 filed by respondent/defendant No.1. The predecessor-in- interest of the present petitioners being aggrieved of the aforesaid judgment and decree preferred an appeal to the Court of learned Additional District Judge, Shabqadar; however, the same was also dismissed vide the second impugned judgment and decree dated 12.02.2019; hence, the petitioners being dis-satisfied from the findings of both the Courts below have now approached to this Court by filing the instant revision petition

4.Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

5.It was the case of the predecessor-in- interest of the present petitioners then plaintiff, namely Mst. Surayya Begum, from the very inception, as was pleaded in her plaint that she is owner in possession of the suit house on the basis of her dower deed dated 18.02.1973. The content of the said dower deed, which was exhibited as Ex.PW2/1 would show that one Haji Shad Muhammad Khan Durrani (who is father-in-law of plaintiff Mst. Surayya Begum) and Sultan

Muhammad Khan Durrani (who is her husband) had, on the eve of her marriage, had given property measuring 35 Kanal and 9 marla situated in mouza Malak Abad, Tehsil Charsadda and in this regard, in the same deed, there is a reference to mutation No.2912 attested on 02.02.1973 executed in favour of said Mst. Surayya Begum. Similarly, the houses given to the plaintiff as Haq-e-Mahar have also been fully described through description in the said deed alongwith 18 tola of gold. In order to prove her stance of being owner in possession of the suit house/land on the basis of her aforesaid dower deed dated 18.02.1973, she has produced one Fazal Mabood, who is the son of the scriber of the said deed, namely Sahibzada Said Mahmood, as PW-2, and who has identified the signature of his late father over the same. The said PW-2 has further identified that at the time of scribing of the said deed, he was also personally present in the mosque where the said deed had been scribed in his presence as well as in the presence of the other witnesses.

Additionally, the plaintiff has also produced the Nikah Khawan, namely Molvi Abdul Karim, as PW- 3, and who has unequivocally and categorically stated that he has performed the Nikah of the plaintiff (Mst. Surayya Begum) with Sultan

Muhammad Khan Durrani, and further endorsed that at the time of Nikah, the dower deed dated 18.02.1973 (Ex.PW2/1) was also scribed, upon which the marginal witnesses have endorsed their signatures, in his presence. The said Molvi Abdul Karim is also a signatory of the said dower deed.

The said PW-3 has also identified the signature of Molana Saif Ullah on the said deed, who, as per his statement, had died 3⁄4 years ago. In support of her plea, the attorney of the plaintiff, namely Lal Badshah, has also appeared as PW-4 and who too has supported the stance of the plaintiff. It is also relevant to mention here that defendant No.2, Sultan Muhammad Khan Durrani, has also filed hi cognovit to the suit of plaintiff. Furthermore, since the dower deed (18.02.1973) pertains to a period before the promulgation of Qanun-e-Shahadat Order, 1984, therefore, plaintiff was not required to produced two marginal witnesses of the same and thus, in the given facts and circumstances, the plaintiff has considerably and substantially been able to prove that she is owner in possession of the suit house on the basis of her said dower deed dated 18.02.1973.

In a case1, the Hon’ble Lahore High Court has held that the argument of the learned counsel for the “Khuda Bakhsh vs. Muhammad Yar and others” reported as 2016 CLS 73

petitioner that only one marginal witness was produced in evidence and there is no other eye- witness, therefore, the sale deed is not in accordance with the provisions of Qanun-e- Shahadat Order, 1984, is mis-conceived as in the year 1979, the Qanun-e-Shahadat Order, 1984 was not in existence, therefore, the provisions of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 could not be attracted. The appearance of one marginal witness of the document, whose credibility could not be shaken in the cross-examination, is sufficient to prove the existence of a valid sale deed.

6.It is relevant to mention here that the learned trial Court has non-suited Mst. Surayya Begum, the predecessor-in-interest of the present petitioners, despite the fact that it has categorically admitted that the plaintiff, who is the wife of defendant No.2, and that the latter had given her dower and then merely on the ground that there is contradiction in the description of the property as find mentioned in the plaint and the description of the house as find mentioned in the dower deed, and then though the learned appeal Court has reversed the said findings and rightly so as on the touchstone that the boundaries of a particular property could not

remain static or unchanged and they may change due to new development/construction over the time, especially when it is seen that the dower deed pertains to the year 1973, whereas the predecessor- in-interest of the present petitioners has filed the instant suit in the year 2008. It may be clarified that by now it is settled jurisprudence that even if detail of the property or for that matter the description of the property has not been provided in the Nikah Nama/Mahar Nama, then merely for such reasons, the wife could not be deprived of her dower and such questions would always be open to the executing Court either to identify the dower property/house on its own or in alternative to ascertain the market value of identical property as that of dowered property/ house and then to pay the same to the wife, therefore, the plaintiff could not be deprived of her dower merely for a contradiction in the description of the dowered property.

7.As far as the prayer of the predecessor-in- interest of the plaintiff for payment of monthly rent is concerned, in this regard, she has neither brought on record any rent deed, nor she has produced any other evidence worth the name, therefore, she is not entitled for the same.

8.As far as the case of respondent/defendant No.1 is concerned, he, from the very inception, as pleaded in his written statement, has admitted in para No.3 of his written statement that initially the suit house was given to him by defendant No.2, namely Sultan Muhammad Khan Durrani (who is husband of plaintiff), on rent vide rent deed dated 01.10.1997 for running a private school but later on, vide deed dated 09.01.2006, the said defendant No.2 has sold out the same to him. Para-3 of the written statement filed by the respondent/defendant No.1, being relevant, is hereby scanned below;

The plain reading of the aforesaid stance of respondent/defendant No.1 would show that earlier he was tenant in the suit house; however, later on, he has allegedly purchased the same through deed dated 09.01.2006 and as such, in the given facts and circumstances, when plaintiff required from respondent/defendant No.1 to vacate the suit house, then in such eventuality, as per mandate of

Article 115 of The Qanun-e-Shahadat, respondent/ defendant No.1 was statutorily bound to have vacated the house and handed over a vacant possession of the same to the husband of plaintiff, namely Sultan Muhammad Khan Durrani (being his landlord) and thereafter, he may establish his right on the basis of the said deed dated 09.01.2006 and as such, after getting a favourable order/decree from a competent court of law, he could have restored his possession of suit house, but as against this, he remained adamant and blatantly refused to vacate the suit house, which his conduct is against the law. In the case2, the Hon’ble Supreme Court has held that even otherwise it is settled principle of law that if a tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in-question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree is passed in his favour then he can enforce the same according to law with all its consequences.

9.It would also be not out of place to mention here that respondent/defendant has filed a suit for “Barkat Masih vs. Manzoor Ahmad (deceased) through L.Rs” reported as 2006 SCMR 1068

declaration on the basis of the aforesaid deed dated 09.01.2006 and simultaneously, he has also prayed for the specific performance of the said deed dated 09.01.2006, and who has further prayed for payment of Rs.1,013,500/- alongwith Rs.500,000/- as a cost of improvement, therefore, in the given facts and circumstances, the question would arise that as to whether the suit of the respondent/ defendant was legally maintainable. In order to comprehensively answer the aforesaid question, it would be relevant to hereby scan the better copy of the deed dated 09.01.2006;

The plain reading of the aforesaid deed would show that it is not a sale deed rather it is an

agreement to sell. It further shows that the predecessor of the present petitioners, namely Surayya Begum, is not its signatory, rather it is Sultan Muhammad Khan Durrani, the husband of the plaintiff, who is signatory and has been shown as vendor. The contents of the said deed would further show that the parties agreed for the sale of a house as against the sale consideration amount of Rs.1,050,000/- and out of which Rs.400,000/- has been shown as paid, whereas for the remaining sale consideration amount, respondent/defendant No.1 has made himself liable to pay the same till 15.02.2006, whereas, conversely, the alleged vendor, namely Sultan Muhammad Khan Durrani, has bound himself for the attestation/execution of a mutation or a registry and thus for all legal and practical purposes, it is not a sale deed but an agreement to sell under which both the parties have bound themselves for the stated obligation in near future.

10.It would also merits to mention here that3 an agreement to sell does not confer any title unless both the parties performed their part of obligations and then the factum of a complete transaction is “Muhammad Riaz Hussain vs. Zahoor Ul Hassan” reported as 2021 SCMR 431, “Abdul Hameed vs. Jahangir Khan” reported as 2020 SCMR 2107 and “Akhlaque Khan vs. Muhammad Javed Sheikh and 2 others” reported as 2014 CLC 492

entered/ executed in the relevant public documents and thus when an agreement to sell is not a deed of title then a suit for declaration could not be filed on the basis of such deed. It needs to be clarified that a suit for declaration under section 42 of The Specific Relief Act, 1877 could be filed for declining a pre-existing right of a person and conversely, such a suit could not be filed for creating a right(s) and thus, on this legal ground alone, the suit of respondent/ defendant No.1 was not legally maintainable. In a case4, the Hon’ble Apex Court has held that through the Suit filed under section 42 of the Specific Relief Act, 1877 a declaration can be granted with regard to legal character or to right as to any property. However, no new right can be created in favour of Plaintiff, by grant of a declaratory decree. Similarly, in another case5, the Hon’ble Supreme Court has held that for seeking a declaration under section 42 of the Specific Relief Act, 1877 through a declaratory decree, a pre- existing right can be declared by the Court and a new right cannot be created. Likewise, in another case6, the Hon’ble Supreme Court has held that we are clear in our mind that through a declaration in “Abdul Razaq vs. Abdul Ghaffar and others” reported as 2020 SCMR 202 “Muhammad Jameel and others vs. Abdul Ghafoor” reported as 2022 SCMR 348 “Director Military Lands and Cantonment Quetta Cantt. Quetta and others vs. Aziz Ahmed and others” reported as 2023 SCMR 860

civil matters claimed under section 42 of the Specific Relief Act a pre-existing right can be declared and a new right cannot be created by grant of a decree by the civil Court.

11.It would also be relevant to mention here that if the respondent/defendant No.1 had considered himself to be ready for performance of his part of obligation under the said deed dated 09.01.2006 then in such eventuality, he was required to have approached his vendor within a reasonable time for payment of outstanding consideration to his vendor and requiring him to attested a mutation/registry, especially when 15.02.2006 was fixed by the parties as a cut-off date on which the respondent/defendant No.1 was required to pay the outstanding sale consideration amount of Rs.6,50,000/- to his vendor and in case of refusal of his vendor (Sultan Muhammad Khan Darrani), then in such eventuality, respondent/ defendant was required to have approached to the Court of law by filing a suit for specific performance of agreement to sell dated 09.012006; however, he did not opt for the same and waited and waited till then when Mst. Surayya Begum filed her suit w.r.t.

the suit house and thus, this long silence and inaction on the part of respondent/defendant No.1

speaks volumes that on one hand he was not ready to perform his part of obligation and on the other the said deed appears to be an attempt and an exercise afterthought so as to counter the suit of Mst.

Surayya Begum. In the case7, the Hon’ble Apex Court has held that on the basis of a sale agreement, no legal character or right can be established to prove the title of the property unless the title is transferred pursuant to such agreement to sell, but in case of denial or refusal by the vendor to specifically perform the agreement despite the readiness and willingness of the vendee, a suit for specific performance may be instituted in the court, but a suit for declaration on the basis of a mere sale agreement is not the solution for appropriate relief.

12.Another damaging aspect, which was not noticed by the fora below while appreciating the deed dated 09.01.2006 in favour of the respondent/defendant No.1, is that he has not claimed the purchase of suit house from plaintiff, which she alleges to be her part of dower, rather he has allegedly purchased the same from Sultan Muhammad Khan Durrani, who is the husband of the plaintiff; however, from the evidence produced “Rao ABDUL REHMAN (DECEASED) through legal heirs vs. MUHAMMAD AFZAL (DECEASED) through legal heirs and others” reported as 2023 SCMR 815

by the respondent/defendant No.1, it is established that respondent/defendant No.1 was in the knowledge that the suit house belonged to Mst.

Surayya Begum, the predecessor-in-interest of the present petitioners, as he, in support of his purchase plea of the suit house, has produced one Abdul Bari Jan as DW-10, and who is also one of the marginal witness of the deed dated 09.01.2006; however, in his cross-examination, he has made certain crucial admissions, which are reproduced below;

يہ درست ہے کہ تحريری دستاويز پر نہ تو ثريا بيگم کا انگوٹا نہ دستخط موجود ہے از خود کہا کہ جب معاملہ پہلے طے ہورہا تها تو وه موجود تهی۔ يہ درست ہے کہ اسی مجلس ميں موجود نہ تهی اور کهڑکی کے دوسری جانب بيهٹی تهی اورسوده بيع ميں مشوره ديتی تهی۔

The aforesaid admissions on the part of this important witness on behalf of the respondent/ defendant would show that he was in the knowledge that the suit house is the ownership of Mst. Surayya Begum (the predecessor-in-interest of the petitioners), as as if he was sure that the suit house belonged to Sultan Muhammad Khan Durrani (husband of the plaintiff), then in such eventuality, he was not required to have been taken her on board at the time of the execution of the deed dated

13.It is also settled law that civil cases are to be decided on the basis of preponderance of evidence.

In the present case, the same surely tilts in favour of petitioners and as against this the respondent has not succeeded to put any legal weight in his scale so as to turn it in his favour and thus he has to face its consequences. In a case8, the Hon’ble Apex Court has held that in civil dispensation of justice, courts are to adjudge the lis on the standard of preponderance of probability of evidence produced by the parties, and the decision of the court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the case.

14.In this case concurrent findings have been recorded by the fora below in favour of respondent/ defendant No.1; however, it is settled since long that concurrent findings of facts are not sacrosanct specially when the law on the subject has been ignored, then in such a case if the judgment passed “Abdul Rehman & others vs. Mst. Allah Wasai & others reported as 2022 SCMR 399

by the two Courts below suffer from misreading or non-reading of evidence or if they have committed any illegality in concluding their judgments, then this Court in its revisional jurisdiction can correct the same. In the case of “Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education, Peshawar and others vs.

Latif Ullah Khan” reported as 2021 SCMR 829, the Hon’ble Apex Court has held that it is essential to note that under section 115 of the Code of Civil Procedure (1908), the supervisory jurisdiction of the High Court in a civil revision petition is purely discretionary and rather limited. However, this Court has held on many occasions that such discretion must be exercised in a lawful and valid manner on the basis of well entrenched principles of the exercise of such discretion. Therefore, the High Court shall not arbitrarily refuse to exercise its discretionary powers, rather, it must satisfy itself as to whether jurisdiction has been exercised properly and whether the proceedings of the subordinate Court suffer from any illegality or irregularity.

Similarly, in the case of “Mandi Hassan alias Mehdi Hussain and another vs. Muhammad Arif” reported as PLD 2015 Supreme Court 137, the Hon’ble Apex Court has also held that before embarking upon to

resolve the above proposition, we find it expedient, to briefly assess the nature of the jurisdiction of Courts in relation to civil revisions filed in terms of section 115 of the C.P.C. There can hardly be two opinions on the nature of revisional jurisdiction. It is a supervisory jurisdiction, which is vested in a higher forum (subject to the pecuniary jurisdiction of the case either the learned District Court or the learned High Court) and is exercised and/or is invoked for scrutiny if a 'case decided' by the Court subordinate to the higher Court's jurisdiction, suffers from any defect in terms of exercise of its jurisdiction and/or on the ground(s) that the Court subordinate has acted in exercise of such jurisdiction illegally and/or with material irregularity. On the basis of the law enunciated and settled by this Court, there is wee room for doubt that being a supervisory jurisdiction, the higher forum which is approached (i.e. the revisional Court) is conferred with the power to ensure that the Court subordinate thereto (to the revisional court) conforms to the parameters of its jurisdiction. In other words the revisional jurisdiction is meant to rectify, to obviate, forefend and stave off the exercise of jurisdictional errors/defects and the illegalities and/or material irregularity committed by the subordinate Court in that regard. But the "case

decided" (order/judgment assailed) has to squarely fall within the scope and the purview of section 115 of the C.P.C. It may however be categorically and unequivocally mentioned here, that approaching a higher Court in the revisional jurisdiction for the redressal of one's grievance, if the case is covered by section ibid (115, C.P.C.) is not a privilege, but is a valuable right of an aggrieved party. Obviously, such exercise of revisional jurisdiction shall be subject to the rules of discretion; but the matter of approaching the revisional Court cannot be relegated to a mere privilege of the Court and not a right.

15.In view of the discussion and exposition of law on the subject, the instant revision petition is allowed and consequently the impugned judgments and decree of the two Courts below respectively dated 23.12.2010 and 12.02.2019 are set aside and as result thereof, Suit No.72/1 of 2008 filed by the petitioners/plaintiff is decreed except her plea of payment of rent, whereas Suit No.56/1 of 2009 filed by the respondent/defendant No.1 is dismissed.

Announced:

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan (Shahid Nawaz, Steno)